L GOPAL DASS Vs. L CHANDRA PRAKASH

JUDGEMENT

(1.) THIS is an appeal against the judgment and decree of a single Judge of this court in a suit brought by the plaintiff for recovery of Rs. 28,300 under Order 37 of the Code of Civil Procedure. Along with the plaint, the plaintiff presented an application for attachment before judgment and obtained an interim order of injunction restraining the defendant from disposing his properties. The suit was based on a promissory note dated 1 -7 -1959 and it is common groung that after the plaint was filed in the court of the learned single Judge, no summons as required by the provisions of Order 37 rule 2 sub -rule (2) of the Code of Civil Procedure was ever served on the defendant. The defendant, however, appeared in court through his lawyer Mr. Sharma in order to contest the application given by the plaintiff for attachment before judgment and injunction. The attachment matter was considered by the court from date to date and ultimately the suit was ordered to be heard on 18 -11 -65 and was then again adjourned to 2 -12 -1965 and then to 22 -12 -1965. On this date the defendant filed an application supported by an affidavit praying for leave to defend the suit. The learned Single Judge held that the application filled by the defendant was hopelessly barred by time and he accordingly rejected the application and decreed the plaintiffs suit.

(2.) IN support of the appeal Mr. Sehgal has submitted that as no summons was ever served on the defendant as required by the mandatory provisions of Order 37 rule 2 sub -rule 2 of the Code of Civil Procedure, the application for leave to defend the suit was within time and the question of limitation did not arise at all. On the other hand, it was submitted by the counsel for the plaintiff -respondent that as the learned Judge has found that the defendant had knowledge of the suit filed against him, he ought to have filed the application for leave to defend the suit within 30 days of the knowledge of the suit. There appears to have been serious controversy between the parties on the question as to whether or not a copy of the plaint presented by the plaintiff was given to the defendant or his counsel. The learned Judge has come to a specific finding that the defendant did receive a copy of the plaint through Shri Chuni Lal the clerk of Shri Sharma Advocate on 12 -7 -65. The court below has further held that since Mr. Sharma appeared for the defendant on various dates after 12 -7 -1965, it can be safely presumed that the defendant had knowledge of the suit more than 30 days before the date when he filed the application for leave to defend the suit. This finding of the learned Single Judge was seriously disputed before us by Mr. Sehgal and he contended that a mere receipt of Mr. Chuni Lal who was a clerk of Mr. Sharma and not duly authorised by his client to receive the copy of plaint, would not show that the defendant or his counsel had actually received the copy of the plaint. In this connection, the learned counsel has taken us through various interim orders passed by the court below. It was submitted by Mr. Sehgal that even if the defendant had appeared to contest the application for attachment before judgment, such an appearance could not be treated as an appearance in the suit so as to impute the defendant with the knowledge of the allegations made in the plaint or to show that the suit was actually instituted under Order 37 CPC and not under the ordinary law. In our opinion, however, the learned Judge has given a very cogent finding on the point as to when the defendant came to acquire the knowledge of the suit and it is not possible for us to disagree with the findings given by him. A perusal of the order sheet would clearly show that on several dates Mr. Sehgal and Mr. Sharma appeared for the defendant and a copy of the plaint was in fact handed over to Shri Chuni Lal the clerk of Mr. Sharma on 12 -7 -1965 which is corroborated by the endorsement on the file of the court. At no stage of the proceedings, before the court below did Mr. Sharma or Mr. Sehgal make a categorical statement before: the court below that the copy of the plaint which was handed Over to Shri Chuni Lal was not given to the counsel for the defendant by Chuni Lal. It is true that on 1O -11 -1965 counsel for the defendant did make a complaint to the court that they had not been given a copy of the plaint and the court directed the counsel for the plaintiff to deliver the copy of the plaint to the defendant. A similar prayer was made before the court below on 16 -12 -1965 and on 20 -12 -1965. Mr. Prakash counsel for the plaintiff filed an affidavit in which he made a clear allegation that the copy was handed over to Chuni Lal clerk of Mr. Sharma and who gave the copy of the plaint to Mr. Sharma. Despite this affidavit, Mr. Sharma did not controvert this allegation and not assert before the court that he had not received any copy of the -plaint from his clerk In these circumstances, therefore, we find, ourselves in complete agreement with the learned single Judge that the defendant must be deemed to have acquired the knowledge of the present suit on or about 18 -7 -1965; It is obvious when the counsels for the defendant filed their objections to the application for attachment before judgment, they could not have been in a position to do so, unless they had perused the plaint filed by the plaintiff. Two eminent counsels had been appearing on several dates and it is difficult to believe that on none of these dates any of the counsels for the defendant would not care to peruse the plaint even in court. The question of knowledge, however, in our opinion, is not sufficient to decide this case. The second argument put forward by Mr. Sehgal is that as the mandatory provisions of rule 2 sub -rule 2 of Order 37 CPC have not been complied with, the application for leave to defend the suit could not be barred by time. This argument, in our opinion, appears to be well founded and must prevail. Sub -rule 2 of rule 2 of Order 37 of the Code of Civil Procedure runs as follows : -

(3.) A perusal of this clause makes it very clear that the statute prohibits the defendant from appearing or defending the suit without obtaining permission of the court in the manner laid down in this sub -rule. The sub -rule also contains the penalty for non -appearance as a result of which the plaintiffs suit has to be decreed and the allegations of the plaintiff would be deemed to be admitted. Order 37 of the Code of Civil Procedure, makes a serious departure for the trial of the suits from the procedure laid down for the trial of the suit under the other provisions of the Code of Civil Procedure. The procedure contemplated by Order 37 CPC is both harsh and rigorous and is in the nature of a summary trial. In such suits the defendant cannot appear or defend the suit as a matter of right but has to obtain the permission of the court within a specified period of time. In view of these circumstances, we have to construe the provisions strictly giving every benefit of doubt to the subject. Article 159 of the Limitation Act, provides a period of 30 days to file an application for leave to appear and defend the suit from the date when the summons under Order 37 sub -rule 2 CPC is served on the defendant. This is the only starting point of limitation mentioned in Art. 159 of the Limitation Act. As it is common ground that no summons was ever served on the defendant, the starting point of Limitation in the present case, did not reach at all and therefore, the question of application for leave to defend the suit being barred by time does not arise. Mr. Das argued that the words "when the summons is served" should be construed to include also the date when the defendant acquires knowledge that a suit under Order 37 CPC had been filed against him. Learned counsel has drawn our attention to the provisions of section 18 sub -clause (b) of the Land Acquisition Act which runs as follows : -